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But the difference between $64,688, the sum named in the defendant's written statement, and $68,276, the sum which should have been named, was deemed so important an error in the basis of the settlement, as to have affected the compromise, and the plaintiff was therefore permitted to surcharge and falsify, the defendant's admissions having taken this part of the case out of the statute.1

§ 189. In the case of Bishop v. Little,2 the plaintiff being in the possession of certain land in the State of Maine, claimed by the Pejepscot proprietors, for whom the defendant assumed to act as agent, paid to the defendant a certain sum of money, and received a deed. At the time, the plaintiff's agent expressed his fears, that the title of the proprietors did not extend so far as to include the land occupied by the plaintiff. But the defendant affirmed that it did, and said that if the deed that he was about to give to the plaintiff, should not convey to him a good title thereto, he would make it good. Upon this assurance the money was paid, and a deed of release and quitclaim was made to the plaintiff. Within six years prior to the commencement of the plaintiff's action of assumpsit, but more than six years after the payment of the money and the delivery of the deed, it was ascertained that the title of the proprietors did not extend so far as to cover the plaintiff's farm; and he thereupon brought his suit to recover back the purchase-money and interest. The court held, that when the deed was made and delivered to the plaintiff, the proprietors had then no title to the land therein described; and that, if the plaintiff ever had a right to recover back the consideration, he had one then, and the failure of consideration, if ever, was at that moment. It was urged, by the plaintiff's counsel, that as this want of title was not discovered till within six years, the statute was no bar; that it did not commence running until the discovery was made.

the case of Kane v. Bloodgood, 7 Johns. (N. Y.), Ch. R. 90-114. And see Hawley v. Cramer, 4 Cow. (N. Y.), R. 718, in equity.

1 In cases of settled accounts, a court of equity will not generally open the account; but will at most only grant liberty to surcharge and falsify, unless in cases of apparent fraud. 1 Story, Eq. Jur. 501. Where the bar of the statute against an account of ten years' standing is repelled by an admission, that the account is open, and a promise to settle it, the length of time will not of itself operate as a bar; but it may, connected with other circumstances, be sufficient to induce the court to require evidence of the claim so clear, consistent, and natural, as to amount to positive and almost conclusive proof. McLin v. McNamara, 1 Ired. (N. C.), Eq. R. 75.

2 Bishop v. Little, 3 Greenl. (Me.), R. 405.

Such, however, the court said was not the law; and they asserted, that no case could be found where the statute had been avoided, at law or in equity, unless on the ground of fraudulent concealment on the defendant's part. There was, moreover, in the perception of the court, no principle of law which could save the cause from the operation of the statute.1

§ 190. Courts of equity will not interpose if a party slumber upon his right unreasonably, after the detection of fraud, or the means afforded of detection. A purchase made by an administrator of one of the distributees, shortly after the latter became of age, of all his interest in his father's personal estate, the administrator having rendered no inventory of the estate, or stated an account, and the purchase having been made at a grossly inadequate price, was considered fraudulent and voidable, at the election of the distributee, if application had been made for that purpose within a reasonable time afterwards, or within a reasonable time after obtaining knowledge of the fraud. But a court of equity, after the lapse of eleven years from the making of such contract, will not lend its aid to rescind it, and compel the administrator to account; the distributee having, when the contract was made, or soon afterwards, knowledge of circumstances sufficient to put him on inquiry. However true it may be, said the court, that time does not commence running until after discovery of the fraud, if a considerable period of time has elapsed before the discovery of the fraud, the efflux of time already passed should quicken the diligence of one who desired to avoid a contract for that cause, especially in a case, where, by the exercise of any diligence, the true state of the case might have been known at an earlier period.2

1 [Where it appeared that the improvements in a tract of land had been conveyed by the defendant to the plaintiff in equity, in 1818, and that an agreement had been made between them, that the defendant was to keep possession for two years, and then quietly leave, and put the plaintiff in; but, before the expiration of the two years the defendant held the possession under a title from the proprietor of the land, and within three years of the filing of the bill, procured a conveyance of the land to himself, and refused to relinquish the possession to the plaintiff, it was held, that the statute of limitations was no bar to the relief sought for by the bill in equity. Chapman v. Butler, 22 Me. 191.]

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2 Johnson v. Johnson, 5 Ala. R. 90 (New Series, 1844). Story (U. S.), 611; Gould v. Gould, id. 516; Stokes v. Lebanon, &c. 6 Humph. (Tenn.), 241; Young v. Cook, 30 Miss. (1 George), 320; Browne v. Cross, 7 Eng. Law & Eq. 263. In this case the Master of the Rolls said: "Courts of Equity have

§ 191. In the case of Harrisburg Bank v. Foster, in Pennsylvania, the court, after citing the case in Massachusetts, of Turnpike Company, as authority for their opinion, that fraud may be successfully replied to a plea of the statute; held, that the cashier of a bank cannot avail himself of the statute to defeat an action on his note by the bank, unless he can show clearly a performance of all his duties in relation to the note, in exhibiting the same as due and unpaid, to the board of directors. The knowledge of the president, or of the individual directors of the bank, that the note was due and unpaid, is not a fact from which negligence can be inferred on the part of the bank, so as to allow the operation of the statute in favor of the cashier.

always considered it of the greatest importance that parties should not sleep on their rights. Champion v. Rigby, 1 Russ. & Myl. 539; and affirmed by Lord Cottenham, 18th March, 1846. If the mere allegation of fraud enabled any one to open transac tions many years after he had notice of it, this doctrine might itself be the means of perpetuating the greatest frauds in cases where the evidence being lost by the lapse of time, an innocent party might be left defenceless. See also, Ferson v. Sanger, 1 W. & M. (U. S.), 138; Gilpin v. Smith, S. & M. (Miss.), 109; Keeton v. Keeton, 20 Mis. (5 Bennett), 530; Moore v. Greene, 2 Curtis, C. C. 202; McLure v. Ashby, 7 Rich. Eq. (S. C.), 430].

1 Harrisburg Bank v. Foster, 8 Watts (Penn.), R. 12.

CHAPTER XIX.

EXCEPTION OF PERSONS UNDER DISABILITIES.

§ 192. Ir is provided by the seventh section of the statute of James, that if any person entitled to bring any of the personal actions therein mentioned, shall be at the time of the cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, such person shall be at liberty to bring the same actions within the times limited by the statute, after his disability has terminated. A person held in slavery, is "imprisoned" within the meaning of the proviso in the statute.1

§ 193. An attempt was made, not many years since, by the counsel, in Piggott v. Rush, in the King's Bench,2 to support a construction of this section of the statute entirely different from the one which had become established. The decision in the case was, that if a party who is under the disability of imprisonment, when the cause of action accrues, commence an action of indebitatus assumpsit, after the time limited by the statute has passed—but during the continuance of the imprisonment—the operation of the statute is barred by the saving clause in this section. But it was contended, by the counsel, that none of the words mentioned in that proviso, applied to assumpsit; for, although it had been so held, yet it was at a time when courts

1 Matilda v. Cranshaw, 4 Yerg. (Tenn.), R. 299. [The party who sets up disability must prove it clearly. Hall v. Timmins, 2 Rich. (S. C.), 120. A person for whose use a suit is brought is entitled to the benefit of any disability to which he would have been entitled had the suit been in his own name. Davis v. Sullivan, 2 Eng. (Ark.), 449. But the grantee of one who could have availed himself of the disability of infancy, cannot avail himself of that exception. Williams v. Council, 4 Jones, Law (N. C.), 206. And where a party shows himself within an exception, he will be presumed to remain within it until such time as will take the case out of the statute, unless the contrary appear. Ibid.]

2 Piggott v. Rush, 4 Adol. & Ell. R. 912.

3 See ante, Ch. IX. § 70.

leaned strongly in favor of restricting the operation of the statute; and that latterly it had been construed as one passed "for quieting men's estates and of avoiding suits;" and that many of the early decisions had been overruled on this ground. Lord Denman said, the court could not overrule the cases, which had decided that the action of assumpsit was included in the statute; and though he thought them rather wrong, the omission was so palpably unintended, that the courts were perhaps justified in straining the language. Littledale, J., said, we are bound by the cases. If it were res integra, I should be of a different opinion." Patterson, J. "We cannot decide in favor of the defendant without overruling those cases." Coleridge, J. "We cannot overrule cases which have been followed by such invariable practice."

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§ 194. But in respect to persons, the statute has been less liberally construed. It was contended, in the Supreme Court of New York,1 that the case came within the equity of the section above mentioned; that the defendant had been discharged under an insolvent act; and that the discharge would prevent the statute from running against an action of assumpsit, upon a contract made before that act, and the money not falling due on the contract until after the discharge. But the court held otherwise, and said, "though the defendant's virtual protection from prosecution by his discharge, produces the same result as his absence from the State, yet we are not warranted by any rule of construction, in deciding, that every cause which produces the same effect, as the one mentioned in the act, comes within it. It is true, that the reason why the absence of the defendant from the State, excuses the plaintiff from prosecuting, is, that the defendant is beyond the reach of the process of the courts; and the defendant's discharge placed him equally without the reach of any recovery against him, till the decision of the Supreme Court of the United States, in Sturgis v. Crowninshield. But it is not for the court to extend the law to all cases coming within the reason of it, so long as they are not within the letter." Indeed, there appears to be no authority, in favor of the doctrine, that if the persons mentioned in the above section are not expressly excepted from the operation of the statute of limitations, there exists a virtual exception. But it has

1 Sacia v. De Grapp, 1 Cow. (N. Y.), R. 356.

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